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State family laws struggle to keep up with surrogacy issues

As the modern family continues to evolve, lawmakers are tasked with untangling all of the new legal issues. A sensitive area of family law that remains complicated across much of the country involves the newer methods of conception and pregnancy.

Surrogacy and artificial conception have ushered in a number of complicated legal dilemmas--including rights of donors and surrogates, custody of embryos, and fertility and surrogacy laws. Late last month a state supreme court reached a split decision on a surrogacy case, reminding families here in Maryland and across the country that this area of the law still remains quite uncharted.

The case took place in New Jersey where a couple used an anonymous egg donor and a gestational surrogate to conceive a child. The couple was proactive and drafted an agreement with the surrogate, stating that she would give up her rights to the baby, and they also secured a court order to place the intended mother's name on the birth certificate.

But problems arose when the attorney general's office filed a lawsuit to have the intended mother's name removed from the birth certificate; because she had no genetic relationship to the child, she would need to legally adopt him or her.

The case made its way to the state supreme court where the couple said that because, under state law, infertile husbands are automatically legal fathers when their wives use sperm donors, the state needs to provide the same rights to infertile women.

Three justices agreed with the couple, but three others thought that letting women who use surrogates skip the adoption process would give special privileges to the wealthy.

This case illustrates the difficulty that courts and legislatures have navigating advances in reproductive practices. Another example is underway in Michigan where a court will soon decide whether inheritance rights should be granted to children who were conceived posthumously due to cryopreservation--with the frozen sperm of their deceased biological father.

Here in Maryland, we do not have state statutes that explicitly regulate surrogacy, but case law has provided some guidance. Families who are considering these alternative methods should research the law and investigate the potential consequences.

Source: New York Times, "Court's Split Decision Provides Little Clarity on Surrogacy," Kate Zernike, Oct. 24, 2012

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